UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HENRY ARTIS,

Plaintiff-Appellant,

v.

No. 97-1122

BILDON COMPANY; HOLMAN BOILER

REPAIR,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CA-95-3098-PJM)

Argued: March 2, 1998

Decided: March 31, 1998

Before WILKINSON, Chief Judge, and WILLIAMS and

MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Michael Samuel Rosier, ROSIER & ASSOCIATES,

Oxon Hill, Maryland, for Appellant. Thomas Vincent McCarron,

SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellee

Bildon Company; Kenneth Gordon Stallard, THOMPSON,

O'DONNELL, MARKHAM, NORTON & HANNON, Washington,

D.C., for Appellee Holman Boiler Repair.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Henry and Elsie Artis brought suit against Bildon, Inc. and Holman

Boiler Repair and Plumbing, Inc., alleging that injuries Henry Artis

suffered when he fell into a trench filled with hot condensate liquid

resulted from defendants' negligence. Defendants assert that Henry

Artis voluntarily assumed the risk of injury when he undertook to

pump the liquid from the trench. We hold that this affirmative defense

bars plaintiffs' recovery, so we affirm the judgment of the district

court.

I.

Henry Artis was injured when he fell into a trench full of hot condensate liquid. Holman, under subcontract from Bildon, dug the

trench in the course of repairing steam and condensate lines running

between two buildings at the Walter Reed Army Medical Center,

where Artis was employed. The trench filled with liquid when Holman's excavations uncovered a leak in one of the lines. On December

29, 1992, Artis was instructed by his employer to pump out the trench

in order to prevent the hot liquid from overflowing and reaching a

nearby building. In the process of deploying a water pump, Artis fell

into the trench and was burned.

Artis and his wife, residents of Washington, D.C., filed this diversity action in federal district court against Bildon and Holman, both

Virginia corporations. The Artises alleged that Bildon and Holman

negligently allowed the trench to remain filled with condensate liquid

and negligently failed to place barriers around the trench. The district

court granted defendants' motion for summary judgment, finding that

Henry Artis' assumption of risk and contributory negligence barred

recovery. The Artises now appeal.

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II.

Under Maryland law,1 to establish assumption of risk Bildon and

Holman must show that Henry Artis "(1) had knowledge of the risk

of danger, (2) appreciated that risk and (3) voluntarily exposed himself to it." Liscombe v. Potomac Edison Co. , 495 A.2d 838, 843 (Md.

1985) (citation omitted). Artis' own admissions reveal that "no genuine issue as to any material fact" remains and provide the evidence

defendants need to make this showing. Fed. R. Civ. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).

Artis admitted that he was aware the trench was filled with hot liquid. Clearly, then he had knowledge of the risk of danger posed by

falling into the trench.

Artis also appreciated the risk. "[W]hen it is clear that a person of

normal intelligence in the position of the plaintiff must have understood the danger, [this] issue is for the court." Schroyer v. McNeal,

592 A.2d 1119, 1123 (Md. 1991). He knew the liquid in the trench

was hot, and he knew he would be burned if he fell in. The Maryland

Court of Appeals recently characterized "the danger . . . of falling

through unguarded openings" as a risk "which anyone of adult age

must be taken to appreciate." ADM Partnership v. Martin, 702 A.2d

730, 734 (Md. 1997) (citation omitted). Artis argues that he could not

appreciate the risk of falling in this case because there were no barriers marking the edge of the trench. On the contrary, the absence of

any delineation of the trench should have been a red flag to Artis, putting him on notice that he was, literally, not on solid ground.

Finally, we conclude that Artis voluntarily exposed himself to this

danger. The Maryland Court of Appeals considered the"`voluntariness' element of the assumption of risk defense" in Martin, 702 A.2d

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1 Maryland law applies because Henry Artis' accident occurred at the

Walter Reed Army Medical Center, located in Maryland. This case arose

in federal district court in Maryland, so we look to Maryland's choice of

law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487,

496 (1941). Maryland courts select the law of the place of the tort to govern tort actions. E.g., Chambco v. Urban Masonry Corp., 659 A.2d 297,

299 (Md. 1995).

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at 732. That court explained "that, in order for a plaintiff to assume

voluntarily a risk of danger, there must exist `the willingness of the

plaintiff to take an informed chance'; there can be no restriction on

the plaintiff's freedom of choice either by the existing circumstances

or by coercion emanating from the defendant." Id. at 735 (citation

omitted). The plaintiff in Martin claimed that she feared her

employer, and therefore, she would suffer adverse economic consequences if she did not undertake the risky task she was assigned. But

she admitted that nobody ever told her she would be fired, or her

employer would lose money, if she refused to complete the assignment. Id. at 738. In the absence of such communication, the Martin

court found no evidence that plaintiff's acts were not volitional and

held that the voluntariness element of assumption of the risk was satisfied.

Martin thus instructs that unless there is some "evidence to show

that [Artis] was not acting on his own volition or free will, or that his

employment would have been in jeopardy had he refused" to pump

out the trench, his acts will be deemed voluntary. Id. at 737-38. Here

there is no such evidence. In fact, Artis admitted that he was not

forced to pump out the trench and that he did not fear any negative

consequence from refusing to perform this dangerous task:

Q Is it fair to say, then, that your relationship with your

supervisor was fairly good?

A Yes.

Q Now, when your supervisor called you to go down to

pump out the pit, you felt free to express to him, at that time,

any concerns you had about the safety of performing that

task, didn't you?

A Yes.

* * *

Q At any point, did your supervisor tell you that if you

didn't pump out this trench, you would be fired?

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A No, sir.

Q At any point in time, did your employer ever threaten

you with disciplinary sanctions if you refused to pump out

the trench?

A No, sir.

Q Did you feel that if you had suggested to your employer

or your supervisor, safety precautions, perhaps, another type

of pump, perhaps, any other precautions, that your employer

would get mad at you and sanction you or fire you?

A No, sir.

Q That is not something you feared at all?

A No.

In the face of the admission that he was not threatened or otherwise

coerced, Artis cannot now dispute that he voluntarily assumed the risk

of the injury that befell him.

III.

For the foregoing reasons, we affirm the judgment of the district

court.2

AFFIRMED

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2 In Maryland, assumption of risk"functions as a complete bar to

recovery because `it is a previous abandonment of the right to complain

if an accident occurs.'" Martin, 702 A.2d at 734 (citation omitted). Thus

we need not address the alternative defense of contributory negligence in

order to affirm the district court's grant of summary judgment to the

defendants.

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